EXHIBIT 3.1
OPERATING AGREEMENT
OF
FIRST NATIONAL FUNDING LLC
The undersigned (all of which are hereinafter referred to as the "Members"
and each as a "Member") having previously agreed to form and operate a limited
liability company (hereinafter referred to herein as the "Company") according to
the Company's Articles of Organization and the Nebraska Limited Liability
Company Act (Nebraska Revised Statutes Section 21-2601 et. seq.), as it may be
enacted and amended from time to time (the "Act"), hereby adopt this Operating
Agreement (this "Agreement") as of October 24, 2002 in replacement of the
Operating Agreement dated as of April 16, 2002.
SECTION 1. NAME. The name of the Company is First National Funding LLC
(the "Company") and all Company business shall be conducted in such name.
SECTION 2. PURPOSE. The Company is organized solely for the purposes set
forth in the Articles of Organization of the Company.
SECTION 3. MEMBERS. (a) The Company has been formed as a limited liability
company pursuant to the provisions of the Act and the Articles of Organization.
Each of the undersigned shall be admitted as a Member of the Company upon such
undersigned's execution of this Agreement. The names and the mailing addresses
of the initial Members are as set forth under their respective signatures below.
At all times, at least one Member shall be a special purpose corporation (the
"Independent Member") which shall have each of the characteristics as set forth
on Appendix A hereto. First National Funding Corporation shall be the initial
Independent Member. Any action required to be taken by the Members under this
Agreement may be taken without a meeting if the action taken is evidenced by a
written consent signed by all of the Members.
(b) Except as expressly provided by the Articles of Organization or
this Agreement or as required by the Act, no Member, other than the Managing
Member (as defined in Section 9 hereof) shall (i) have the power to act for or
on behalf of, or to bind, the Company, (ii) take part in the day-to-day
management or the operation or control of the business and affairs of the
Company or (iii) be an agent of the Company or have any right, power or
authority to transact any business in the name of the Company. The Managing
Member shall execute and deliver any certificates (and any amendments and/or
restatements thereof) necessary for the Company to qualify to do business in any
jurisdiction in which the Company may wish to conduct business.
SECTION 4. LIMITED LIABILITY. Except as otherwise provided by the Act, the
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be the debts, obligations and liabilities solely of the
Company, and no Member shall be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a Member of the
Company.
SECTION 5. CAPITAL CONTRIBUTIONS. Each of the Members has contributed as
capital, in cash, the amount set forth next to such Member's name on Schedule 1
hereto.
SECTION 6. ADDITIONAL CONTRIBUTIONS. No Member is required to make any
additional capital contribution to the Company. However, a Member may make
additional capital contributions to the Company with the written consent of the
other Members.
SECTION 7. ALLOCATION OF PROFITS AND LOSSES. The Company's profits and
losses shall be allocated in proportion to the capital contributions of the
Members.
SECTION 8. DISTRIBUTIONS. Distributions shall be made to the Members at
the times and in the aggregate amounts determined by the Members; provided,
however, until such time as all indebtedness under any notes, bonds,
certificates or other securities secured or by or evidencing beneficial
ownership interests in the Credit Card Assets (as defined in the Articles of
Organization) or any indenture or other agreement entered into by the Company or
by a trust at the direction of the Company from time to time in connection with
the acquisition, creation, funding or financing of Credit Card Assets
(collectively, the "Transaction Documents") is paid in full, no distributions
shall be made if a default under the Transaction Documents has occurred and is
continuing. Distributions shall be allocated among the Members in the same
proportion as their then capital account balances. Notwithstanding any provision
to the contrary contained in this Agreement, the Company shall not make a
distribution to any Member on account of its interest in the Company if such
distribution would violate Section 21-2618 of the Act or other applicable law.
SECTION 9. MANAGEMENT. Except for situations in which the unanimous
approval of all Members is expressly required, the powers of the Company shall
be exercised by or under the authority of, and the business and affairs of the
Company shall be managed under the direction of, one managing member (the
"Managing Member"). The Independent Member is hereby appointed the Managing
Member of the Company.
SECTION 10. COVENANTS REGARDING OPERATION. As long as any indebtedness is
outstanding under the Transaction Documents:
(a) The Company shall not incur, assume or guarantee any
indebtedness other than the Company's obligations with respect to or
contemplated by the Transaction Documents.
(b) The Company shall not engage in any business or activity other
than as permitted in the Articles of Organization.
(c) The Company shall not consolidate or merge with or into any
other entity or convey or transfer its properties and assets substantially
as an entirety to any entity other than as specifically permitted by the
Transaction Documents.
(d) The Company shall not dissolve or liquidate, in whole or in
part.
(e) The Company shall not commingle its funds or assets with those
of any other individual or entity.
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(f) The Company shall not hold itself out as being liable for the
debts of any other party and the Company shall not pay from its assets any
obligations or indebtedness of any other individual or entity.
(g) The Company shall pay from its assets all obligations and
indebtedness of any kind incurred by the Company.
(h) The Company shall not form, or cause to be formed, any
subsidiaries.
(i) The Company shall not file any voluntary petition or consent
to the filing of any petition in or institute any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceeding under any federal or state bankruptcy or similar law on behalf
of itself without the prior unanimous written consent of all of the
Members, including the Independent Member.
(j) The Company shall not permit the Managing Member to withdraw.
(k) The Company shall at all times have at least one Managing
Member which shall have each of the characteristics of the Independent
Member as set forth on Appendix A hereto.
(l) The Company shall act solely in its name and through its duly
authorized agents in the conduct of its business, and shall conduct its
business so as not to mislead others as to the identity of the entity with
which they are concerned.
(m) The Company shall transact business with any affiliate, if at
all, on an arms length basis and pursuant to enforceable agreements. To
the extent that the Company and any of its members or affiliates have
offices in contiguous space, there shall be fair and appropriate
allocation of overhead costs (including rent) among them, and each such
entity shall bear its fair share of such expenses. For purpose of this
agreement, the term "affiliate" means any person controlling, under common
control with, or controlled by the person in question, and the term
"control" means the possession, directly or indirectly, of the power to
direct or the cause the direction of the management and policies of a
person, whether through ownership of voting securities, by contract or
otherwise.
(n) The Company shall maintain separate records and books of
account and financial statements and shall not commingle its records and
books of account with the records and books of account of any entity. The
Company shall use separate stationery, invoices and checks.
(o) The Company shall make no asset distributions, including,
without limitation, any distribution of dividends, except to the extent of
cash on hand in excess of that needed to cover the expected cash needs of
the Company.
(p) The Company shall observe all organizational formalities in
its relations with its Members.
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SECTION 11. LIMITATION ON POWERS OF MEMBERS. No Member, including the
Managing Member, shall have the authority to:
(a) terminate, dissolve, liquidate or wind up the Company as long
as any indebtedness remains outstanding under the Transaction Documents;
or
(b) without the unanimous written approval of all of the Members,
file or consent to the filing of a bankruptcy petition for or against the
Company or otherwise institute an insolvency or bankruptcy proceeding for
or against the Company.
SECTION 12. OTHER BUSINESS. Except for the Independent Member, each Member
and any person or entity affiliated with any of the Members may engage in or
possess an interest in other business ventures (unconnected with the Company) of
every kind and description, independently or with others.
SECTION 13. EXCULPATION AND INDEMNIFICATION. No Member shall be liable to
the Company, or to any other Members for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such Member in good faith
in connection with the formation of the Company or on behalf of the Company and
in a manner reasonably believed to be within the scope of the authority
conferred on such Member by this Agreement, except that a Member shall be liable
for any such loss, damage or claim incurred by reason of such Member's gross
negligence or willful misconduct. To the full extent permitted by applicable
law, each Member shall be entitled to indemnification from the Company for any
loss, damage or claim incurred by such Member by reason of any act or omission
performed or omitted by such Member in good faith on behalf of the Company and
in a manner reasonably believed to be within the scope of the authority
conferred on such Member by this Agreement and for expenses actually and
reasonably incurred in connection with the defense of a civil or criminal
action, suit or proceeding in which the Member is made a party by reason of
being or having been a member or manager, except that no Member shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Member by reason of gross negligence or willful misconduct with respect to
such acts or omissions or in respect of such expenses for any matter as to which
the Member is adjudged in the action, suit or proceeding to be liable for
negligence or misconduct in the performance of duty; provided, however, that any
indemnity obligation under this Section 13 shall be subordinate to all
indebtedness owing under the Transaction Documents Agreements and shall not be
payable from the assets of the Company pledged to secure such indebtedness and
no Member shall have personal liability on account thereof.
SECTION 14. TRANSFER AND ASSIGNMENTS. The Independent Member may not
transfer or assign its membership interest or any of its rights or
responsibilities. A Member may not transfer or assign, in whole or in part, its
membership interest without the express written consent of the Independent
Member. In the event of a transfer or assignment of a Member's interest, the
transferee shall be admitted to the Company upon its execution of an instrument
signifying its agreement to be bound by the terms and conditions of the
provisions of this Agreement. Such admission shall be deemed effective
immediately prior to the transfer, and immediately following such admission, the
transferor Member shall cease to be a Member of the Company.
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SECTION 15. RESIGNATION. The Independent Member may not withdraw or resign
as a Member of the Company, and any purported withdrawal or resignation shall
not be effective. Notwithstanding the prohibition against the resignation or
withdrawal of the Managing Member, in the event that the Independent Member
resigns or withdraws, the remaining Members shall appoint a replacement
Independent Member, which replacement member shall have each of the
characteristics of the Independent Member as set forth on Appendix A hereto. If
the Independent Member resigns or withdraws, no decision requiring the approval
of all Members under this Agreement shall be made until a successor Independent
Member is appointed and is serving.
Members other than the Independent Member may not resign from the Company
without the written consent of the Independent Member. If a Member is permitted
to resign pursuant to this Section, an additional Member shall be admitted to
the Company, subject to Section 17, upon its execution of an instrument
signifying its agreement to be bound by the terms and conditions of this
Agreement. Such admission shall be deemed effective immediately prior to the
resignation, and, immediately following such admission, the resigning Member
shall cease to be a Member of the Company.
SECTION 16. ADMISSION OF ADDITIONAL MEMBERS. One or more additional
Members of the Company may be admitted to the Company with the unanimous written
consent of the Members.
SECTION 17. DISSOLUTION. (a) Notwithstanding any other provisions of this
Agreement, the Company shall not terminate, dissolve or liquidate while owing
any amount under the Transaction Documents despite the occurrence of any event
which might terminate the continued membership of a Member in the Company,
including the following:
(i) a member:
(A) makes an assignment for the benefit of creditors;
(B) files a voluntary petition in bankruptcy;
(C) is adjudged bankrupt or insolvent, or has entered
against him an order for relief, in any bankruptcy or insolvency
proceeding;
(D) files a petition or answer seeking for himself any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation;
(E) files an answer or other pleading admitting or failing
to contest the material allegations of a petition filed against him
in any proceeding of this nature;
(F) seeks, consents to or acquiesces in the appointment of a
trustee, receiver or liquidator of the member or of all or any
substantial part of his properties; or
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(ii) 120 days after the commencement of any proceeding against the
member seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any
statute, law or regulation, if the proceeding has not been
dismissed, or if within 90 days after the appointment without his
consent or acquiescence of a trustee, receiver or liquidator of the
member or of all or any substantial part of his properties, the
appointment is not vacated or stayed, or within 90 days after the
expiration of any such stay, the appointment is not vacated.
(b) If no indebtedness is outstanding under the Transaction
Documents, the Company shall be dissolved upon the first to occur of the
following:
(i) the sale of all or substantially all of the Company's assets;
(ii) the unanimous written agreement of all of the Members;
(iii) April 1, 2042; and
(iv) any other event resulting in dissolution of the Company under
the Act.
(c) In the event of dissolution, the Company shall conduct only
such activities as are necessary to wind up its affairs (including the
sale of the assets of the Company in an orderly manner), and the assets of
the Company shall be applied in the manner, and in the order of priority,
set forth in Section 21-2625 of the Act.
SECTION 18. AMENDMENTS. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by all of the Members, including, as long as any indebtedness is
outstanding under the Transaction Documents, the consent of the Independent
Member. In addition, as long as any indebtedness is outstanding under the
Transaction Documents, this Agreement may not be modified, altered, supplemented
or amended unless the Rating Agency Condition (as defined in the Transaction
Documents) has been met.
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EXECUTED by the undersigned as of the date first written above.
FIRST NATIONAL FUNDING
CORPORATION
By /s/ Jean L. Koenck
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Name Jean L. Koenck
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Title Senior Vice President
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Mailing Address:
1620 Dodge Street, Stop Code 3198
Omaha, NE 68197-3198
FIRST NATIONAL BANK OF OMAHA
By /s/ Matthew W. Lawver
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Name Matthew W. Lawver
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Title Senior Vice President
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Mailing Address:
1620 Dodge Street, Stop Code 3198
Omaha, NE 68197-3198
SCHEDULE 1
Name Initial Capital Percentage
Contribution Interest
First National Funding
Corporation $400 40%
First National Bank of
Omaha $600 60%
Total $1,000 100.0%
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APPENDIX A
REQUIRED CHARACTERISTICS OF INDEPENDENT MEMBER
The Independent Member shall be a corporation which shall at all times
have the following characteristics:
(a) The Corporation shall have, at all times any
indebtedness is outstanding under the Transaction Documents, at least two
Independent Directors. An Independent Director shall be any person who (i)
is not and has never been (A) a direct, indirect or beneficial
stockholder, officer, director, partner, employee, affiliate, associate,
material customer or material supplier of First National Bank of Omaha
("FNBO"), or any subsidiaries or affiliates thereof, or (B) a member of
the immediate family of any person described above, and (ii) does not
directly or indirectly own any class of voting stock of FNBO or any of its
affiliates. As used herein, the term "affiliate" means any person
controlling, under common control with, or controlled by the person in
question, and the term "control" means the possession, directly or
indirectly, of the power to direct or the cause the direction of the
management and policies of a person, whether through ownership of voting
securities, by contract or otherwise. The provisions of this Article
VI(b), and all references herein to the Independent Directors, shall
become effective only upon the initial closing under the Transaction
Documents.
If an Independent Director resigns, dies or becomes incapacitated,
or such position is otherwise vacant, no action requiring the unanimous
affirmative vote of the Board of Directors shall be taken until a
successor Independent Director is elected and qualified and approves such
action. In the event of the death, incapacity, or resignation of an
Independent Director, or a vacancy for any other reason, a successor
Independent Director shall be appointed by the remaining directors.
No Independent Director shall owe a fiduciary duty or other
obligation to the initial shareholder(s) nor to any successor
shareholders, and every shareholder, including the initial shareholder(s)
and each successor shareholder, shall be deemed to have consented to the
foregoing by virtue of such shareholder's purchase of shares of capital
stock of the Corporation, no further act or deed of any shareholder being
required to evidence such consent. Instead, each such Independent
Director, in voting on matters subject to the approval of the Board of
Directors, shall at all times take into account the interests of creditors
of the Corporation in addition to the interests of the Corporation. No
Independent Director may be removed unless a successor Independent
Director is appointed.
(b) a corporate purpose limited to engaging solely in the
following activities:
(i) to serve as the Independent Member and the
Managing Member of the Company;
(ii) to execute and deliver the Operating Agreement of
the Company;
(iii) to execute and deliver, on behalf of the Company,
of the Transaction Documents;
(iv) to take such actions as are necessary to permit
the Company to achieve its limited purpose as set forth in its
Articles of Organization; and
(v) any lawful act or activity that may be taken by
corporations organized under the Nebraska Business Corporation Act,
that is necessary for the accomplishment of the above-mentioned
purposes and not specifically prohibited by its Articles of
Incorporation (collectively, the "Independent Member Business").
(c) corporate organizational documents which shall, so long
as any indebtedness is outstanding under the Transaction Documents,
provide Member, that:
(i) The Corporation shall not incur, assume or
guarantee any indebtedness other than the Corporation's obligations
as Managing Member with respect to the Transaction Documents.
(ii) The Corporation shall not engage in any business
or activity other than as permitted in Article III hereof.
(iii) The Corporation shall not consolidate or merge
with or into any other entity or convey or transfer its properties
and assets substantially as an entirety to any entity nor shall the
Corporation permit the LLC to consolidate or merge with or into any
other entity or convey or transfer its properties and assets
substantially as an entirety to any entity.
(iv) The Corporation shall not dissolve or liquidate,
in whole or in part nor shall the Corporation permit the LLC to
dissolve, terminate or liquidate, in whole or in part.
(v) The Corporation shall not commingle its funds or
other assets with those of any other individual or entity.
(vi) The Corporation shall not hold itself out as being
liable for the debts of any other party and the Corporation shall
not pay from its assets any obligations and indebtedness of any
other individual or entity.
(vii) The Corporation shall pay from its assets all
obligations and indebtedness of any kind incurred by the
Corporation.
(viii) The Corporation shall not form, or cause to be
formed, any subsidiaries nor shall the Corporation permit the LLC to
form, or cause to be formed any subsidiaries nor shall the
Corporation acquire any interest as a general or limited partner or
member in any entity other than the LLC as specified herein.
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(ix) The Corporation shall not file any voluntary
petition or consent to the filing of any petition in or institute
any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceeding under any federal or
state bankruptcy or similar law on behalf of itself or the LLC.
without the unanimous written consent of the entire Board of
Directors, including the Independent Directors.
(x) The Corporation shall not amend, alter, change or
repeal any provision contained herein nor shall the Corporation
permit the LLC to amend, alter, change or repeal any provision of
its organizational documents.
(xi) The Corporation shall not sell, exchange, convey,
encumber or otherwise dispose of any or all of the Corporation's
right, title or interest as the Managing Member of the LLC.
(xii) The Corporation shall make no asset distributions,
including, without limitation, any distribution of dividends, except
to the extent of cash on hand in excess of that needed to cover the
expected operating expenses of the Corporation, including any debt
service due with respect to the Transaction Documents.
(xiii) The Corporation shall act solely in its corporate
name and through its duly authorized officers or agents in the
conduct of its business, and shall conduct its business so as not to
mislead others as to the identity of the entity with which they are
concerned.
(xiv) The Corporation shall transact business with any
affiliated entity on an arms length basis and pursuant to
enforceable agreements.
(xv) The Corporation shall maintain separate corporate
records and books of account and shall not commingle its corporate
records and books of account with the corporate records and books of
account of any entity. The books of the Corporation may be kept
(subject to any provision contained in the statutes) inside or
outside the State of Nebraska at such place or places as may be
designated from time to time by the Board of Directors or in the
Bylaws of the Corporation.
(xvi) The Board of Directors of the Corporation shall
hold appropriate meetings to authorize all of its corporate actions.
Regular meetings of the Board of Directors shall be held not less
frequently than one time per annum.
(xvii) Meetings of the shareholders of the Corporation
shall be held not less frequently than one time per annum.
(xviii) The Corporation will at all times ensure that
its capitalization is adequate in light of its business and
purposes.
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